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Your rights depend on whether you and your partner are married and whether the property is in joint names. The law in this area can be complicated and you should always seek expert legal advice.
OWNER OCCUPIERS
If you are joint owners of a property (married or not) you both have the right to live there and it cannot be sold unless you both agree or one of you has been to court for an order for sale. You both continue to be liable for the mortgage and the lender can pursue you for payment if your partner stops paying.
If you can't agree on who will stay in the property in the short term, you can apply to the court for an occupation order which says who will live there and who pays the mortgage. Such an order should be made in circumstances where either the applicant or a child in the home would be at risk of significant harm if an order were not made. If the court is not clear that one party would suffer more harm than the other, the court has the discretion to take into account other factors but in practice occupation orders are very difficult to obtain where there is not a risk of significant harm, because the court is making one party homeless.
If you are married and your husband or wife is the sole owner of the property, you have the right to:
- occupy the matrimonial home unless ordered to leave by a court
register a "charge" on the home to prevent your spouse from selling or remortgaging
- make the mortgage payments if your spouse leaves or stops paying.
You can also apply for an occupation order in the same way as if you were a joint owner.
If you are married, then in the longer term, as part of divorce proceedings, the court can divide up or transfer property regardless of ownership. The court could order:
- the sale of the property and division of proceeds
the transfer of the property to one person's name for either no payment or a lump sum in exchange
- that the partner caring for the children stays in the home until the children reach 18 or complete education, or until another specific event e.g. remarriage or cohabitation of the parent in the home, or even giving a right to occupy for life. that one partner stays in the property and pays rent to the other partner.
If your partner is the sole owner of the property and you are not married to your partner, your partner can ask you to leave and you would only have the right to stay if you got an occupation order as explained above, or could prove a beneficial interest, either through an express agreement or understanding between you, at the time the property was bought, that you were to share the property beneficially, or through having made financial contributions to the purchase of the property. But if you have children together, you could try to get the property transferred in to your name under Children Act proceedings, as explained in more detail below. If you are the sole owner of the property, and you are not married to your partner, then the same applies in reverse that you can ask him/her to leave and he/she would only have the right to stay under an occupation order, beneficial interest or an order under the Children Act.
If you have children with the person you live with, whether or not you are married, you could make an application under the Children Act for a longer term settlement or transfer of property. This applies whether you are joint owners or your partner is the sole owner. The court has a duty to consider the children's welfare and can make:
- an order requiring settlement of property to be made for the child e.g. the family home may be retained for one partner's use until the children are 18 when the property would be sold.
- an order requiring a transfer of property from one partner to the other parent for the benefit of the child, or an order requiring a transfer of property to the child him/herself.
TENANTS
In the short term, if you and your partner are joint tenants:
- you have the right to remain in the property and can only be made to leave by a court order
- you can only make your partner leave by getting a court order
- you have the right to pay the rent and are liable for it all if your partner fails to pay her/his share
- you are liable for the rent until the tenancy is formally ended, even if you leave the property
- the joint tenancy continues until formally ended, even if only one of you remains in the property
If your partner tries to make you leave, you can ask the court for an occupation order. Your partner could end the tenancy for both of you by giving notice to the landlord, so take legal advice if you think this might happen.
In the long term, if you are or were cohabiting, or are married and divorcing, you can ask the court to transfer the tenancy into your name. This is more likely to succeed if the children will be staying with you. You can also do this by agreement with your partner, but get advice about how to make it legal; it's not enough just to tell the landlord that one of you is leaving.
If your partner is the sole tenant, s/he can end the tenancy by giving notice to the landlord, so take legal advice if you want to try to prevent this. If you are not married and your partner asks you to leave, you can only stay in the property by getting an occupation order. If you haven't got an occupation order and your partner moves out, you may lose your protection from eviction.
If you are married, you have the right:
- to occupy the matrimonial home and not be excluded, except by court order
if not occupying the matrimonial home, to obtain a court order to regain entry and live there
- to pay the rent (but you are not legally liable for rent except by order of the court).
In the long term, if you are or were cohabiting, or are married and divorcing, you can ask the court to transfer the tenancy into your name, or do it by agreement, as described above for joint tenants.
If you are the sole tenant, any person sharing with you can only remain in the property with your agreement, unless they are married to you or obtain an occupation order from the court. But your married or unmarried partner may be able to get the tenancy transferred into her/his name by applying to the court; this is most likely to succeed if the children will be living with her/him. If you don't want to stay in the property, it may be worth trying to get the tenancy transferred to your partner's name so that you are no longer liable for the rent.
DOMESTIC VIOLENCE
If you want to stay in your home but are suffering from, or at risk of, abuse or violence from your partner, you may be able to obtain a court injunction to protect you or your children; although this may only be a temporary solution. There are two types of injunction:
- a non-molestation order orders your partner to stop being abusive or violent. "Molestation" can include many forms of behaviour including harassment and pestering, and the court must consider the need to secure your health, safety and wellbeing and that of your children. The court can attach a power allowing the police to arrest your partner if the order is breached.
- an occupation order can be used to exclude your partner from the home and even from a defined areas around the home. Again, you do not have to prove that there has been violence and the court must consider your child's development as well as your physical or mental health.
Remember that domestic violence is a crime and is now treated seriously by the police, many forces have specially trained officers who can advise you in confidence on what they can do to help.
If you don't want to stay in your home because of domestic violence and you are unable to rent or buy somewhere else to live or move in with family, your options are either:
- going to a women's refuge. This will be an ordinary house at a secret address where your violent partner will not be able to find you and you will be supported while you decide on your future, or
- applying to the council as homeless. You will have to convince them that you cannot remain in your accommodation because of actual or threatened violence or mental abuse or other circumstances that make it intolerable; it helps if you have had previous contact with the police, a solicitor or social services. If they accept you as homeless they must provide or secure accommodation for you that is suitable and affordable, until such time that you cease to be eligible, or are offered permanent accommodation, or make other arrangements such as renting privately. If you are not legally settled in the UK, you could jeopardise your stay by applying to the council as homeless. If you are unsure of your immigration status or you are not legally settled, seek specialist advice (see below for details of the Immigration Advisory Service).
USEFUL TELEPHONE NUMBERS
Rights of Women: 020 7251 6577, Tue, Wed, Thur: 2 - 4, 7 - 9, Fri: 12 - 2.
Women's Aid National UK Helpline: 0845 702 3468.
Welsh Women's Aid: 029 2039 0874.
Scottish Women's Aid: 0131 475 2372.
Women's Aid Helpline (Northern Ireland): 02890 331818.
Shelterline: 0808 800 4444. 24-hour housing advice.
Resolution; first for family law (for specialist solicitors in your area): 08457 585 671.
Immigration Advisory Service: 020 7378 9191. 24-hour helpline
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